Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4469            February 29, 1908

FELIPE G. CALDERON, plaintiff,
vs.
JOSE MCMICKING, clerk of the Court of First Instance of Manila, defendant.

Allen A. Garner for plaintiff.

W.L. Wright for defendant.

WILLARD, J.:

The plaintiff brought this original action of mandamus in this court to compel the defendant, the clerk
of the Court of First Instance of Manila, to send to this court that part of the record of the special
proceeding for the settlement of the estate of Francisca Hilario, deceased, which related to two
orders entered therein, one on the 26th day of September, 1904, and the other on the 3rd day of
October, 1904, the plaintiff claiming that he had duly appealed from both of said orders. The
defendant has demurred to the complaint and the case is now before us for the resolution of the
demurrer.

It appears from the complaint that by the order of the 26th of September, 1904, the plaintiff,
Calderon, was directed to pay into court on or before the 3rd day of October, 1904, P10,514.14. The
plaintiff alleged that on the 30th day of September, 1904, he appealed from such order. There is no
allegation in the complaint that he gave any bond, such as is required by the Code of Civil Procedure
upon every appeal from an order made in a special proceeding relating to the estate of a deceased
person. Without such bond, the appeal was not perfected, and until such bond was presented, and
approved by the court below, the clerk was under no obligation to send the record here. This part of
the complaint constitutes no cause of action.

The order made on the 3rd day of October, 1904, recited that the plaintiff had not complied with the
order of the 26th of September and that in lieu thereof, he had appealed therefrom. The court
considered that this failure to comply with that order was a contempt and adjudged that the plaintiff
be imprisoned in Bilibid until he complied with the same.

The plaintiff in this action alleges that against this order of the 3d of October he appealed and gave a
bond in the sum of P10,000, which was approved by the judge.

We think that the complaint shows that the plaintiff did all that the law required him to do in order to
perfect his appeal from this order and that it is the duty of the clerk to send up that part of the record
which relates thereto.

It is suggested by the defendant that this appeal was never allowed by the court below. It is true that
section 780 of the Code of Civil Procedure says that before an appeal is allowed the persons
appealing shall give a bond. We do not think that this section can be so construed as to require an
order of the court approving the appeal before it can be considered as perfected, since section 779
provides as follows:
 Method of perfecting such appeal. — The person thus appealing shall perfect his appeal
within twenty-one days after the entry of the order, decree, or judgment by the Court of First
Instance, by filing with the clerk of that court a statement in writing that he appeals to the
Supreme Court from such order, decree, or judgment. The clerk shall thereupon transmit to
the Supreme Court a certified transcript of the account embraced in the order, decree, or
judgment, and of the order, decree, or judgment appealed from, and of the appeal.

It is also suggested by the defendant that, the order of the 3rd of October, 1904, being an order
punishing the plaintiff for contempt, the practice upon appeal is governed by section 240 of the Code
of Civil Procedure. That section is as follows:

Final judgment. — The judgment and orders of a Court of First Instance, made in cases of
contempt, except in cases arising under section two hundred and thirty-one, may be
reviewed by the Supreme Court; but execution of the judgment and orders shall not be
suspended until there is filed by the person in contempt, in the court rendering the judgment
or making the order, an obligation with sureties to the acceptance of the judge, in an amount
to be by him fixed, and conditioned that if the judgment be against him he will abide and
perform the order or judgment. But such review shall be had only after final judgment in the
action in the Court of First Instance, and when the cause has regularly passed to the
Supreme Court by bill of exceptions, as in this act provided.

The defendant relies upon the last sentence of the section.

It is to be observed that this is not an action, but is a special proceeding. Ordinary actions are
brought to this court by bills of exceptions, but no special proceeding can be brought here in such a
way except in the one case provided for by section 777 of the code. It is further to be noted that no
ordinary action can be brought to this court until a final judgment is entered in the lower court, which
puts an end to the litigation in that court. (Sec. 123 of the Code of Civil Procedure.) In special
proceedings, however, any final order, and orders relating to the settlement of accounts, the
allowance or disallowance of a will, and the decree of distribution may be brought here before a final
determination of the entire special proceeding pending in that court. The case of Enriquez vs.
Enriquez (5 Phil. Rep., 668) was an appeal from an order punishing Francisco Enriquez for
contempt. That order was made in a special proceeding relating to the settlement of the estate of
Antonio Enriquez, deceased, and it was reviewed by this court before any final judgment or decree
had been entered in the court below termination the proceeding relating to that estate. In our opinion
the last part section 240, above quoted, does not apply to orders for contempt made in special
proceedings, and appeals from such orders may be brought here at any time. We therefore hold that
as to the order of the 3rd of October, 1904, the complaint constitutes a cause of action. The
demurrer is accordingly overruled and the defendant is given ten days from the date of this decision
within which to file an answer to the complaint. So ordered.

Arellano, C.J., Torres, Mapa, Johnson, Carson, and Tracey, JJ., concur.